August 28, 2012
I posted a new and likely controversial piece titled "Disaggregating" on SSRN today. As the abstract explains, the basic idea is that if courts can no longer resolve mass torts cases through judicial means, like approving a class action settlement, and must resort to encouraging private settlement, then perhaps we should rethink what we hope to accomplish by centralizing these cases.
Rethinking centralization really requires that we consider two questions: First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve those claims collectively absent a private settlement?
This Article’s title suggests one answer: if minimal commonality continues to justify collective litigation, then the system should aggregate claims to resolve common concerns and then, as state laws or individual differences come to the forefront, disaggregate into smaller, cohesive groups whose members’ claims could be resolved collectively through public, judicial means, such as trials or dispositive motions. Disaggregating into smaller, more cohesive units could revive the use of issues classes, particularly when the class definition is correspondingly narrow.
To be clear, I do not claim that this is the only way to legitimately resolve mass torts. But my previous work has prompted me to think more directly about the use of exit. Exit can perform a number of functions. It can signal dissatisfaction with substantive or procedural fairness. It allows plaintiffs with fundamental differences over which litigation ends to pursue and how to pursue them to leave the group when significant conflicts arise. It thus preserves plaintiffs' choice of forum and may also safeguard defendants' right to assert individual affirmative defenses.
Exit performs other functions, too, such as preserving substantive law and furthering democratic ideals. For example, while private ordering through settlement might follow a handful of bellwether trials, jurors are geographically concentrated in the transferee forum. That allows no public participation from other affected communities nationwide, whereas holding trials in plaintiffs’ original fora would further democratic participation ideals. Jury trials are, after all, meant to be a communal enterprise and, as the American Tort Reform Association likes to point out, each community may approach the adjudicative and deliberative process differently. In that way, disaggregating might also help maintain fidelity to state substantive law.
As always, I'd be interested in your comments - eburch at uga.edu